CONSOLIDATION OF COMMONWEALTH ANTI-DISCRIMINATION LAWS
Submission on behalf of Legal Aid NSW to the Commonwealth Attorney-General's Department
February 2012
About Legal Aid NSW
The Legal Aid Commission of New South Wales (Legal Aid NSW) is an independent statutory body established under the Legal Aid Commission Act 1979 (NSW) to provide legal assistance, with a particular focus on the needs of people who are economically or socially disadvantaged.
Legal Aid NSW provides information, community legal education, advice, minor assistance and representation, through a large in-house legal practice and through grants of aid to private practitioners. Legal Aid NSW also funds a number of services provided by non-government organisations, including 36 community legal centres and 28 women's domestic violence court advocacy services.
Legal Aid NSW has significant expertise in the area of discrimination law. Grants of legal aid are available for discrimination matters pursuant to Legal Aid NSW Policy Online 6.8 (Addendum A).[1] In addition to civil law litigation, discrimination law issues regularly arise in the provision of civil law advice and outreach services. Legal Aid NSW also provides a number of specialist programs addressing discrimination law.
Community Legal Education – Discrimination Toolkit Workshops
The Legal Aid NSW Discrimination Toolkit Workshops is a discrimination law community legal education (CLE) program.
The Discrimination Toolkit Workshops program was targeted at community workers rather than community members. This was in response to a need for community worker training in discrimination law being identified in the NSW Northern Rivers region by the Cooperative Legal Services Delivery (CLSD) program.[2] Services reported that their most marginalised clients were frequent victims of discrimination but rarely took any action to remedy it. Reasons included failure to identify unfair treatment as unlawful discrimination, lack of information about discrimination law remedies, difficulty obtaining legal advice and representation and prioritisation of other life issues above remedying discriminatory treatment.
The Lismore offices of Legal Aid NSW and the Aboriginal Legal Service (ALS) subsequently surveyed Aboriginal services about the incidence of discrimination in their community. Responses unanimously highlighted the prevalence of discrimination in the daily lives of Aboriginal clients and the need for community worker training to help identify discriminatory conduct and support individuals to make complaints.
Following this, the Discrimination Toolkit workshops were developed and piloted in the Northern Rivers and are now being offered to Aboriginal community workers in regional NSW through the CLSD program. They are co-facilitated by a specialist community legal educator and a Legal Aid NSW solicitor with a large discrimination law practice and are conducted in partnership with the ALS or other local Aboriginal services.
The workshops accompany the recently updated Discrimination Toolkit: Your Guide to Making a Discrimination Complaint.[3] The program provides a practical introduction to the basic principles and scope of discrimination law and complaint procedures. It assumes no prior knowledge of discrimination law. The goal of the workshop is to increase the capacity and confidence of Aboriginal community workers to support community members to use discrimination law as a tool for the promotion and enforcement of their human rights.
At the time of submission, seven workshops had taken place in the Northern Rivers and Hunter regions (Lismore x 3, Tweed Heads, Ballina and Newcastle x 2). Further workshops will be held in Wagga Wagga and Albury in early February 2012 and in the Far West (Broken Hill and Wilcannia) in March. To date, seventy-nine Aboriginal community workers have completed the training.
Employment Law Project
In early 2010 Legal Aid NSW established an Employment Law Project to build and enhance the capacity of Legal Aid NSW to provide advice and assistance for disadvantaged clients with employment law problems, including discrimination. The service is targeted to vulnerable clients experiencing, or at risk of, social exclusion and long term unemployment. This project has enabled Legal Aid NSW to observe and develop opinion on the nature and extent of workplace discrimination and the operation of relevant laws including the Fair Work Act 2009 (Cth) (FW Act).
Legal Aid NSW welcomes the opportunity to provide these comments. For further discussion of any of the issues raised in this paper, please contact Tristan Webb, Project and Policy Officer, Strategic Policy, Planning and Management Reporting Division, on 02 9219 5695 (or via email at ) or Annmarie Lumsden, Executive Director, Strategic Policy, Planning and Management Reporting Division, on 02 9219 6324 (or via email at )
Background
Legal Aid NSW welcomes the Federal Government commitment to consolidating the current Commonwealth anti-discrimination framework[4] into a single, comprehensive law (the Consolidation Project). We recognise that the Consolidation Project is a significant step in Australia's Human Rights Action Plan.[5]
Legal Aid NSW considers the Consolidation Project as a significant opportunity for the Government to:
· clarify ambiguities in the current framework,
· promote consistency;
· enhance protections where needs are identified,
· address identified deficiencies with the current complaints-based model, and
· improve compliance with Australia's international human rights obligations.
The Legal Aid NSW submission proposes general legislative aims as informed by our experience of providing information, community legal education, advice, minor assistance and representation to disadvantaged people across New South Wales.
The Legal Aid NSW submission does not intend to duplicate detailed legal analysis provided by others. Where our experience suggests a position aligned with recommendations presented elsewhere we have endorsed that component of the other submission.
We understand that proposed legislation will be released by the Commonwealth Attorney General for comment at a future point. Legal Aid NSW would welcome the opportunity to comment on this draft legislation.
The Legal Aid NSW response is predicated on the following underlying principles:
· The consolidation bill should incorporate Australia's international human rights obligations into domestic law;
· The Government's stated commitment to no diminution of protections at the federal level should be observed;[6]
· The consolidation bill should ensure consistency of outcome with those best practice features identified in the current Acts, State and Territory anti-discrimination laws, and the Fair Work Act 2009 (Cth);
· The consolidated bill should reduce complexity of concepts and processes and improve accessibility of the law for people affected by discrimination.
Meaning of Discrimination1. What is the best way to define discrimination? Would a unified test for discrimination (incorporating both direct and indirect discrimination) be clearer and preferable? If not, can the clarity and consistency of the separate tests for direct and indirect discrimination be improved?
The test which defines discrimination should be clear, readily understood, and particularly accessible to self-represented applicants. Legal Aid NSW submits that a unified test would be the best way to achieve this outcome. Such an approach would make rights-education more straightforward, remove unnecessary technicality and assist individuals and their advocates to identify potential breaches. A unified test should be complemented by explanatory memoranda and/or a statutory definition which clarifies that a consolidated definition is intended to incorporate the concept of both direct and indirect discrimination.
In the event that a unified test is not adopted then Legal Aid NSW recommends that the consolidated bill should improve the two tests in a way that renders them clear and consistent.
Direct discrimination and removal of the comparator test
The Legal Aid NSW experience of providing advice and community education suggests that the concept of a comparator is particularly difficult for applicants, and indeed community support workers, to understand. This lack of clarity is compounded by the 'unpredictable' application of the test by judicial officers as outlined in the Discussion Paper.
Legal Aid NSW submits that the comparator test could be replaced by the detriment test as formulated in the Discussion Paper. This has the advantage of being a test that is currently used in other jurisdictions such as the ACT[7] and Victoria[8]. Such an approach would be simpler to understand and this clarity likely to increase the consistency of its application, in marked contrast to the comparator test.
Indirect discrimination and the need to clarify what is meant by 'reasonable'
Legal Aid NSW supports the proposal in the Discussion Paper to clarify the concept of 'reasonableness' by the addition of an indicative list of factors to be taken into account when determining reasonableness.
An indicative list would clearly make it easier for the concept of indirect discrimination to be understood by applicants. It would provide guidance to applicants and respondents alike through the court process and would assist in negotiations. Importantly it would also provide guidance to respondents when they are imposing requirements.
2. How should the burden of proving discrimination be allocated?
The Legal Aid NSW experience accords with the assertion that the current burden of proof is too onerous on the complainant to try and establish that a respondent has treated them unfairly on the basis of a protected attribute. In this regard Legal Aid NSW notes and agrees with Associate Professor Simon Rice's comment:
A complainant must… prove the reason for another person's conduct, when all knowledge of it is in the mind of the other person, any evidence of it is in the control of the other person, and the power to contradict any allegation is with the other person. A complainant must prove as a fact, on the balance of probabilities, the unarticulated reason for a person's conduct – a very difficult exercise. This approach to proof often enables a person to avoid accountability for their discriminatory conduct, simply because they are not called on to explain it.[9]
In Legal Aid NSW experience this unreasonable evidentiary requirement acts as a significant barrier and disincentive to people wishing to pursue a remedy for unlawful discrimination. A lack of available evidence to prove the reason for the unfair treatment on a prohibited ground, more often than not, results in a complainant not pursuing any remedy at all.
The experience of Legal Aid NSW in providing civil law advice suggests countless examples where a person is complaining of unfair treatment on the basis of a protected attribute but has no evidence, other than a belief or a feeling, that the attribute was the reason for the treatment. In those circumstances, although solicitors can advise the person that it is their right to lodge a complaint and see if any supporting evidence arises during the complaints or court process, more often than not such evidence will not arise because it is in the mind, or occasionally in documentation, of the respondent only. The Legal Aid NSW experience is that, in the majority of instances, the result of the advice to the person is that they choose not to pursue a complaint because they have no evidence of the unlawful reason for the unfavourable treatment.
Further, Legal Aid NSW notes that issues relating to lack of available evidence, and the consequent assessment of reduced prospects of success in making a claim, can also result in fewer legal practitioners being willing to act in discrimination matters. This includes potential representation by Legal Aid NSW where a grant of legal aid for discrimination matters requires satisfaction of a merits test.[10] Accordingly, in most cases, Legal Aid NSW would not act in a matter in circumstances where an assessment is made that the applicant does not have reasonable prospects of success because they are unable to satisfy the evidentiary burden.
Legal Aid NSW therefore endorses the recommendation made by the 'Discrimination Law Experts' Group that:
… the legislation should provide that once the claimant has made out a prima facie case that allows the possibility of inferring that unlawful discrimination occurred, that is, that the respondent’s action could have been motivated by an unlawful attribute, a rebuttable presumption would arise that the basis for the action was unlawful.[11]
We note that similar recommendations have been made by:
· Law Council of Australia;[12]
· National Association of Community Legal Centres.[13]
Legal Aid NSW highlights that our endorsed approach is consistent with the onus provisions of the FW Act. As noted in the Discussion Paper, according to the FW Act, once the claimant satisfies the threshold tests, the onus is then reversed and placed upon the respondent(s). Pursuant to s361 of the FW Act the prohibited reason is presumed unless proven otherwise. For example, in a disability discrimination claim, once the claimant has established that "adverse action"[14] occurred and that the claimant has a 'disability' (within the meaning of s351) the respondent(s) will then need to prove that the conduct in question did not occur because of a prohibited discriminatory reason. However, this does not mean that the respondent(s) bear the onus in response to mere allegations. A claimant's case must focus on the causal connection of the "adverse action" and the prohibited reason.[15] Assertions by the employer that there were multiple reasons will not constitute a defence. If one or more of the reasons is prohibited then the claimant will succeed. The test as to whether or not the "adverse action" has occurred because of a prohibited discriminatory reason is objective.[16] The subjective intent of the person(s) who engaged in the conduct may be relevant, but is not decisive.[17]
3. Should the consolidation bill include a single special measures provision covering all protected attributes? If so, what should be taken into account in defining that provision?
Legal Aid NSW notes that the four Commonwealth Acts contain separately worded provisions for special measures. The SDA, DDA and ADA express the concept of special measures broadly and use phrases such as 'for the purpose of achieving substantive equality', 'special needs' or 'reduce a disadvantage' and 'bona fide benefit'. The RDA refers explicitly to the relevant article on special measures found in Article 1 of the Convention.[18] Legal Aid NSW submits that a clause for special measures should be drafted to reinforce the purpose of special measures as a means of achieving equality whilst simultaneously ensuring no loss of benefit conferred by any one of the particular acts.
A clause worded in such a general way would need to be complemented by examples of what could constitute special measures. Such a list of examples should be formulated after further consultation with stakeholders and peak bodies.